John Reid: My hon. Friend makes some perfectly reasonable points. I would not pretend that Afghanistan is more benign in the south than in the north, but I do not think his description was absolutely correct; he may not have caught up with events, but the Governor of Helmand has been replaced by a new governor, Engineer Dowd, who is, I think, pursuing more vigorously policies less easily open to accusations—I choose my words carefully here—of corruption or connection with some of the nefarious trades that go on. Nevertheless, the area is a difficult one to go into, and I can only assure my hon. Friend that one reason why I have spent so much time on, and have as yet, despite all the pressure, made no announcement on, the details for go-ahead, in spite of its being agreed in principle, is that I wanted to be satisfied on some of the very points that he has raised. In particular, there must be sufficient economic development and financial assistance for the area.

The Chairman: Before we proceed, may I say to the Committee that the occupant of the Chair should be referred to as Chairman or by name. The term "Deputy Chairman" is not applicable in these circumstances. As we have three days to go, I thought it as well to make that clear.

Dominic Grieve: The Secretary of State shakes his head, but an MP is sent to the House to legislate. If the people of Wales make it clear in a referendum that they want the Welsh Assembly to have responsibility for primary legislation, and if the Government hands over that responsibility, the result will be similar to what happened with Scotland—this House will relinquish some of its power, and therefore shed an element of sovereignty.
	The Secretary of State will accept that, when the Government's proposed procedure is a hybrid, the responsibility for good governance remains here. However, the Government's proposals envisage that this House will part with its responsibility in response to a draft document that cannot be reconsidered. That is what worries me: once the principle of the Order in Council has been accepted, the Secretary of State and the Assembly will resolve the details of legislation and Parliament will have no further opportunity to consider the matter.

Lembit �pik: I am delighted to hear of that transformation on the road to Damascus on the Conservative Front Bench, at least, on the idea of a multi-option referendum in which one option would the abolition of the Assembly. Does the hon. Gentleman feel that the Conservatives returned to Parliament from Wales share his view? If not, for my clarification, what has driven that strategic change of heart?

Dominic Grieve: I agree with my hon. Friend. It would also undermine the duty of care that we owe to the people of Wales of ensuring that the legislation that they will get through the hybrid system is acceptable. The buck stops with us. Why should we give a blanket exemption to the Assembly if it fails to operate in the line with the statutory powers that have been conferred on it, without which it has no power whatsoever?
	There are aspects of the Bill that cause concern because of the extent to which the Assembly will be able to depart from its standing orders. We want to have the necessary reassurance that the Assembly will discharge its functions under the hybrid system in the way in which Parliament intends, but the Bill will allow it to change its standing orders so that it does not scrutinise legislation fully. That is an extraordinary thing to do in part 3. It might be a proper thing to do in part 4 if we are handing over a tranche of responsibilities entirely, but doing that in part 3 is very odd. I hope that the Minister will take the first opportunity to respond to that point.
	I apologise for taking up so much of the Committee's time, but the matter is important and numerous interventions have been made. If part 3 of the Bill were to be acceptable in any way, a situation in which the House did not have control over the final text of legislation to be implemented, even if the detail had been worked out by the Welsh Assembly, would be quite wrong. The amendments are designed to address that situation.

Nick Ainger: Very simply, the answer is yes, because giving the Assembly enhanced legislative powers was a manifesto commitment. I am surprised that the hon. Gentleman had to ask that question, given the purpose of the Bill and everything that we have said it about it, including in the White Paper.
	The Bill is designed to give the Assembly enhanced legislative powers, but the amendments show that the Tories still have no faith in the Assembly's ability to scrutinise its own legislation. If that is not so, why does Amendment No. 161 enable Parliament to examine an Assembly Measure not only at the beginning of the process but at the end, and to say yes or no to it? That is not accepting devolution.

Nick Ainger: The hon. Gentleman cannot have read the White Paper. The main thrust behind the introduction of the part 3 powers is the delays and logjam that occur with the parliamentary process here. If the Assembly is to be totally dependent on primary legislation being passed here and then given framework powers for secondary legislation, it will have to wait a long time. It may be that there will be occasions when legislation will give the Assembly framework powers that it can convert into Assembly Measures, and I have quoted the Education Act 2005. However, the point of part 3 is to address the issue that was highlighted in the Richard report about the parliamentary legislative logjam that exists here. It prevents the Assembly from getting through the pieces of legislation that it wants.
	I think that I have dealt with virtually all the points raised by the hon. Member for Beaconsfield. Clearly, I have not convinced him, but I did not expect to do so. However, I shall now turn to some of the points about draft legislation and scrutiny that were raised by my right hon. and hon. Friends. I notice that the hon. Member for Montgomeryshire (Lembit pik) is no longer in his place.My right hon. Friend the Member for Torfaen (Mr. Murphy) touched on the importance of pre-legislative scrutiny in this process. The problem that we face is that the Bill cannot fetter the procedures of the House. We cannot dictate to the House the procedures for pre-legislative scrutiny. I agree with everything that my right hon. Friend and my hon. Friend the Member for Wrexham (Ian Lucas) said about the importance of pre-legislative scrutiny. The Welsh Affairs Select Committee has done an excellent job in considering pieces of primary legislation and has changed them.
	It is important for all Members to understand the process that will be involved. We envisage that, with the agreement of the House and the Select Committee, a preliminary draft order will be produced by the Assembly after it has been through whatever processes it wants to go through, and that may include considering a report produced by one of its Committees. The Secretary of State would then ask the House and, in particular, the Select Committee to scrutinise that draft legislation or Order-in-Council.
	I hope that my right hon. Friend has seen the two documents that I have made available to the House, the first of which was a draft document relating to the Bill for a public services ombudsman. Instead of being a piece of primary legislation, the document shows how it would have followed the Order in Council and Welsh Assembly Measure system. The second relates to the Transport (Wales) Bill, which is completing its stages through the House. That would also have gone through the Order in Council process. Both documents clearly show the opportunities that exist for pre-legislative scrutiny.

Nick Ainger: I speak as a former member of the Whips Office. The Secretary of State would be laying a Government order, so I would expect my hon. Friends to follow the Secretary of State's suggestion of supporting it.
	We have had a long exchange on the detail of amendment No. 161. The hon. Member for Beaconsfield raised several points when he spoke to amendment No. 162, so it worth putting our thinking on record. Amendment No. 162 would remove the protection afforded to an Assembly Measure against legal challenge on the ground of a procedural invalidity in the proceedings of the Assembly that led that to its enactment. The Bill provides for the legal separation of the Assembly Government from the Assembly, as is the case here, in the Northern Ireland Assembly and in the Scottish Parliament.
	The Assembly should not be impeded in its primary function of making legislation by legal challenges, some of which could be wholly spurious and based on a technical invalidity during proceedings. In respect of Parliament, that principle is enshrined in article 9 of the Bill of Rights, which provides that freedom of speech, debates and proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. It is also reflected in respect of the Scottish Parliament in section 28(5) of the Scotland Act 1998, and in respect of the Northern Ireland Assembly in section 5(5) of the Northern Ireland Act 1998. Clause 92(3) and the equivalent Measure in clause 106(3), which relates to Acts of the Assembly, will put the Assembly on the same footing as Parliament, the Northern Ireland Assembly and the Scottish Parliament.

Dominic Grieve: I shall avoid having a major constitutional debate with the hon. Gentleman, although that is a relevant and important topic. If part 4 were ever enacted, the argument about reducing the role of Welsh Members would become similar to that for reducing the role of Scottish Members. The same applies to a reduction in the number of Welsh MPs.
	From the Government's point of view, the nice thing about part 3 is that it blurs all that and provides a mechanism by which Parliament sheds its law-making powers to a mixture of the Secretary of State and the Assembly, but in a way that preserves the notion that Parliament remains in complete control of Welsh matters.
	I shall now bring my remarks to a close, because that is precisely why I tabled amendment No. 161 in the first place. Its merit is that it would ensure that Parliament scrutinised the end product of an Assembly Measure before it was enacted. If I may say so to the Minister, that reflects exactly the constitutional position for which he is trying to argue.
	I found the Minister's arguments about my proposal being a kick in the face for the Assembly odd. Under part 3, the Assembly's powers would be enhanced. We gradually drew that out from the Minister. It took time to succeed, but finally we got an acknowledgement that these powers are different from the pre-existing powers. A final ratification procedure therefore seems to me fairly reasonable.
	The Minister argued that that would interfere grossly with the way in which the Assembly carries out its functions and delay things. I find that an odd argument. What on earth is wrong with a one and a half hour debate in this House to enable the House to satisfy itself that the Assembly has operated in compliance with the remit originally given to it, and that the Measure does not offend constitutional propriety or cause difficulties? All those are powers that we are to give to the Secretary of State, but apparently we do not want to keep them for ourselves.
	The longer this debate has gone on, the more convinced I have become that my decision to table the amendment was correct. I listened carefully to the arguments of the hon. Member for Montgomeryshire (Lembit pik), who suggested that we would be taking back something from the old devolution settlement of 1998, but he will have heard what the Minister said, and I do not think that we are doing that. Even if there is an area of interface between the twoI fully acknowledge that constitutional issues can be blurred at the edgesI genuinely think that this is an improvement in the system.
	After all, the Bill is about all sorts of ways of improving that system. I do not think that my proposal would diminish the Assembly's ability to do the detail, and it certainly would not reduce or interfere with the power that the Government propose to give the Assembly to do the detail, or with its existing powers to implement what was previously the Secretary of State's remit. My amendment would provide a way by which the House could continue to be involved.
	I agree with the right hon. Member for Torfaen and the hon. Member for Wrexham (Ian Lucas) about the scrutiny issues. I am not sure what all the solutions are. I am open-minded on that subject. On its own, the proposal before us would not be a substitute for the pre-legislative scrutiny. These things have to go hand in hand, but to suggest that the idea behind amendment No. 161 is an insult to the Assembly or the people of Wales is far off the mark.

Cheryl Gillan: Ah, yes; once bitten, twice shy. I thank my hon. Friend for reminding the House of the north-east referendum. When the Labour Government think they will win, they hold a referendum. If they think they may not win, or there is a chance that another view will be expressed, they have no intention of allowing that device to be used by the people.
	The next point that we need to consider is whether the proposal is for a fundamental change. Throughout the debate, the Secretary of State and the Minister have tried to talk up the Assembly Measures as a more radical devolution, or to talk down the Measures as merely a device of convenience to overcome legislative roadblocks. The proposal is a handling plan to appease the opposing factions in the Labour party. They should not try to pull the wool over our eyes in order to sort out their internal differences.
	When giving evidence to the Welsh Affairs Committee on 10 December the Secretary of State said that the device enabled the Government to
	get on with the job in the meantime and give substantial powers . . . to the Assembly through Orders in Council between 2007 and 2011.
	On Second Reading the Father of the House, the right hon. Member for Swansea, West (Mr. Williams), who sadly is not in his place, raised concerns. He said that he believed it was technically possible under these provisions for the full legislative objective to be achieved without a referendum. He raised further concerns about what he described as a Trojan horse. He said that
	if just one non-controversial, innocuous order is passed, a policy area is opened. Once that happens, the Assembly is free to introduce new measures with different policy objectives, without having to go for a further order. It is a form of creeping devolution.[Official Report, 9 January 2006; Vol. 441, c. 53.]
	I hope the Minister will take seriously the words of the Father of the House.
	Last week in the debate in the Assembly the First Minister, who has been alerted to the possibility of having primary legislative powers in all but name and without the inconvenience of a referendum, said that every party in Wales would be able to start the process of preparing their manifestos on the basis of the extension of the Assembly's law-making powers. He went on to boast that the third Assembly would have far greater law-making powers than the first and second, which meant more meat on the bones, more choice for the people and more power for the people of Wales.
	Let us be clear. There will not be more power for the people of Wales. There will be more power for the Labour Executive in Wales, whether the people want them to have it or not. The First Minister has no plans to ask them, either.
	The provisions extend significantly the powers of the Assembly and the people should be consulted first, not least as this is not what they voted for in the last referendum which, as everybody recalls, was won by a whisker. What did the people of Wales vote for? We are all more than aware of their lukewarm endorsement of the original Assembly provisions. However, I am more concerned with what the people of Wales think they have voted for, rather than reliving the referendum.
	I have examined the policy papers produced in August 1997. They make extremely interesting reading. In policy paper 3 the Government told the people that the Assembly would consider how new laws from the Westminster Parliament would be implemented in Wales, and that the Assembly would fill in the details of those laws by secondary legislation to reflect the needs in Wales. The policy paper answers those questions by saying that primary legislation will be made in Westminster, and that it effectively will be interpreted in Wales by the Assembly. So the people of Wales were led to believe that they were voting only for secondary legislation.
	More importantly, in answer to a question in policy paper 6, the Government answered the questionas to why the referendum would not offer a wide range of options such as full independence by saying that Ministers believed that those options had been rejected by the voters in the general election. They said that the purpose of the referendum was to seek endorsement of the Government's detailed plans that voters had accepted in principle. In other words, the last referendum was specifically on the detailed plans that were enacted in the Government of Wales Act 1998, and not on the general outline. The people were certainly neither consulted on, nor led to believe that they would get, the system that is before us today.

Cheryl Gillan: These are obviously selective quotes from the hon. Gentleman. However, neither of those statements is incompatible with our view that, if we are to move forward in that fashion, we should hold a referendum. I would have hoped that the hon. Gentleman appreciated the spirit of our amendment, which would allow the people of Wales to have a voice. Too often, they have been ignored. The amendment would provide the opportunity for them to say what they would like and whether they approved of the detailed plans in the Bill. If the people of Wales were capable of being consulted on the detailed proposals before, why not ask them again this time, when the mechanisms for legislation and the outcomes are so patently perceived to be changing in such a complex and opaque fashion?
	Another reason that is given for the introduction of Assembly Measures is the lack of parliamentary time and the alleged frustrations of the Welsh Assembly Ministers with their failure to secure legislative time. When I spoke to the First Minister a few weeks ago, the only real example that he cited was the failure to get legislation considered that would make St. David's day a bank holiday. In other words, it was a proposal that he had put forward and that the Government had sought to block by ignoring it.
	There is no real evidence of a vast backlog of legislation. These measures are therefore an indictment of the way in which the Secretary of State fights his corner in Cabinet for legislative time to be given to Wales. If that is the case, will a full list of every proposal that has been rejected by the Labour Government to date be placed before the House? I invite the Minister to place in the Library of both Houses a list of the requests that the Secretary of State and the Department have received from the Assembly that they have failed to satisfy. If we had that list before us, we would be better able to understand the position relating to the legislative timetable and the blockage to which everyone is alluding.
	It is interesting that, while we are arguing about this in Westminster, the First Minister is arguing a different point in the Welsh Assembly. Last week, he stated that a Westminster Department or two would be able to get a Bill that they would not be able to get at the moment because of the lack of time in the parliamentary year. It is interesting that the Assembly should be pleading the case of Government Departments here, but I find it hard to believe that the parliamentary timetable is really so overcrowded, especially as the Government have now pulled their Northern Ireland on-the-runs legislation and appear to have pulled their legislation on the National Offender Management Service. They are also devoting six days on the Floor of the House to this Bill. I believe that there would have been plenty of time to accommodate not only the hard-done-by Westminster Departments so fondly defended by the First Minister but any outstanding requests from the Assembly.
	However, the very fact that detailed scrutiny is to pass to the Assembly highlights the variation between the Government's proposals and what the people of Wales have voted for. Such a change should receive their blessing or otherwise. Such a complicated process should not be put before the House when we could dispense with part 3 if we speeded up the process here and left in the Bill future legislative powers and the provision for the main referendum that has already been suggested. I believe that there is enough parliamentary time, and that this is really a question of business management. However, if this procedure is to be introduced, the people of Wales should have a voice in the matter.
	Furthermore, the Minister should have consulted fully in this Parliament before the Bill goes through. In order to know what we would be putting to the people of Wales in a referendum, we should ensure that we have considered these proposals properly in this House and the other place. I was surprised to find that the proposals for the Assembly Measures had not been examined by the Procedure Committee in this House. I wrote to its Chairman on 11 January to ask the Committee to examine the implications of the legislative proposals in the Bill, so that it could give its view on parliamentary scrutiny for the procedures in both Houses. Before any matter is put to the people of Wales in any referendum, they should know the views of this House on the procedures that are being promulgated.
	On Second Reading, the Secretary of State gave the impression that these matters had been discussed with Lord Holme and Lord Dahrendorf, the Chairmen, respectively, of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee in another place, and that the Committees had been consulted. However, reading the letters from those Chairmen to the Secretary of State that have been placed in the Library of both Houses, it is obvious that neither the Committees nor the Chairmen had even seen the Bill, let alone had the opportunity to comment on it in any fashion. So perhaps the Minister could let us have sight of the response of the Secretary of State and tell us whether the Committees of this House and the other place will have the chance to examine these complex procedures, which were certainly not envisaged by the Richard commission. They would need to be examined to discover the full implications of what we would be putting to the people of Wales in a referendum. As Lord Richard suggested, as a very minimum, the Henry VIII powers ought to be considered, not least to see whether a more transparent and understandable method could be used than the tortuous route envisaged under the Order in Council mechanism.
	The Conservative party is committed to giving the Assembly the chance to work well. I do not want to rehearse the argument that we should allow it to improve its current performance before loading more competences on to its Members. As the Richard commission has said, however, given the complexity of devolved powers, knowing what the Assembly can and cannot do is becoming less of a problem for those close to Government, but it remains a central issue of accountability for the people of Wales. Perhaps it would therefore be more sensible to divide the Executive from the Assembly and look for a period of stability rather than load on another piece of complex legislative architecture. Were the Minister were to dispense with part 3, maintain the status quo and consider improving the way in which the Welsh Assembly works currentlyas it was envisaged workingperhaps we would withdraw the amendment, as there would be no need to insist on a referendum of the people of Wales.
	I want to prevent an open-ended opportunity for repeated referendums should the initial result not be in accordance with the Government's wishes. As we shall see later in our deliberation of the Bill, the Government have a tendency to leave the door wide open for repeated referendums, as they have done on part 4. That would not be healthy legislation, so one of my amendments would rule that out.
	The Secretary of State and Labour Ministers constantly try to depict the Conservative party as negative towards devolution. As I have explained, we have proposed a referendum not because we would expect a negative reactionI leave that to the Secretary of State and the First Ministerbut simply to ensure that the Government are moving ahead at a speed that is acceptable to the people of Wales. Nor are we reluctant to see further powers given to the Assembly, which should only be done if it has the capability to exercise those powers and the full backing of the Welsh nation.
	We have been disappointed by the progress made by the Assembly in its current tasks and would like to see it improve its performance before we spend more time saddling it with what must be one of the most complicated legislative procedures imaginable. If we burden the Assembly in such a fashion, we will risk its existence, because we will be rushing the process to keep pace with Labour's political timetable.
	The people of Wales deserve better than that. They deserve a voice in the process. We should consult them before the event, not after. If the Minister has the guts to do it, I ask him to accept the amendments and give the people of Wales the vote that they deserve. He was happy enough to consult them previously, and he should be happy to do so again.

Adam Price: If my hon. Friend the Member for Meirionnydd Nant Conwy (Mr. Llwyd) appears in a second, he may want to say a few words about amendment No. 25, which is more his area of competence, although sadly at the moment not that of the National Assembly.
	On the Under-Secretary's suggestion, I will be pithy. Energy is topical at the moment with the publication today of the Government's consultation paper and the energy review. As energy provision is such a vital function and a secure, diverse and sustainable supply is so important, the issue is clearly of vast interest across the nations, but there are particular interests and the nature of energy differs across the United Kingdom. Energy has of course played a very important part in the history of Wales; we have certainly produced enough of it for the rest of the UK over a couple of centuries at least. It remains a key political issue in Wales for a variety of reasons.
	However, there is an anomaly. Although energy remains a reserved matter, even under the Scotland Act, elements of it have been devolved and will be under the proposals in this Bill for Wales. Energy efficiency, for instance, is a devolved matter provided that it does not involve regulation or prohibition, as is energy conservation, and so on. Some elements of renewable energy are devolved and will continue to be so under the Bill. However, where there is interconnection, therein lies a problem.
	At the moment, projects under 50 MW onshore are devolved to the National Assembly, whereas projects bigger than that remain a reserved matter in the Department of Trade and Industry. We argue that that is not acceptable. If we are to have a comprehensive energy policy for Wales, we must have greater devolution of power. That is why we seek through this amendment to introduce a new field for energy, which will allow the National Assembly, following the enactment of this Bill, to propose Orders in Council, extending some of its competence in energy.
	Offshore developments are another area of increasing interest. There is an interesting feasibility study about possible tidal developments in Swansea bay and other coastal areas of Wales. Currently, and following the enactment of the Bill, such developments remain an exclusive power of the DTI. The Assembly should be enabled to propose an Order in Council to allow it greater control over such areas.
	Moving to the more contentious issue of nuclear power, the National Assembly for Wales should decide whether Wales sees the building of a nuclear power station. We have heard the Secretary of State for Wales express the view that he does not believe that Wales should go down the nuclear route, and similar statements have been made by the Minister for Economic Development and Transport who has responsibility for energy in the National Assembly. There is consensus among three, if not four, of the political partiesand, who knows, some of the independents as wellon the fact that we do not want Wales to go down such a route, but currently and under the Bill the National Assembly does not have the power to reject the imposition of a new nuclear power station, whether in Pembrokeshire, Camarthenshire or any other part of Wales.
	Surely that cannot be right. The Scottish Executive have the power under the Electricity Act 1989 to award or to reject power station consents. All we are asking in the amendment is that the National Assembly have the right to propose an Order in Council giving itself the same power as the Executives in Scotland and, indeed, Northern Ireland have.

Cheryl Gillan: My hon. Friend makes his point in his own way, and I shall make it in my way a bit later on. It is arguable that the way in which the Bill has been drawn is so wide that it could be wider than schedule 7, which limits and provides the exceptions. It is an extremely valid point.
	Transfers of functions orders have already been brought in in respect of various matters, such as court cases involving subordinate legislation, local land charges, inheritance tax and a right to be party to proceedings on compatibility with the Human Rights Act 1988. Will the Minister outline under which fields those matters, for example, could be covered? That is extremely important. I need to feel that the Minister has fully explained to the House how widely the fields are drawn. Let me give an example. Under economic development, it could be argued that it might be possible for the Assembly to promote the development of nuclear power in Wales, and thus support a new nuclear power station at Wylfa B. As we heard as we debated the last set of amendments, there is great concern about that in Wales. Perhaps there is a way to claim field 4 as the encompassing field for discussing, promoting or moving those matters forward. It would be of interest to know whether that could or could not be.
	Under social welfare, could the Assembly add the provision of social security benefits or employment programmes aimed at all unemployed people? Could it add child support or pension regulation, all of which currently remain wholly the responsibility of the UK Government. Are the headings a pointer to the direction that the Government wish to take, in which case could the Minister enlighten us further? Or do the Government seek to maintain the status quo in these fields, in which case, could they be filled in? If they are not filled inas schedule 7 has been completed in detail to cover the situation in which full legislative powers are devolvedit could be argued that schedule 5 could be interpreted to cover a wider remit than schedule 7. The Minister should clarify that very generally drawn schedule, because otherwise it might not find favour in this Committee or in the other place.

David Jones: Does my hon. Friend share my puzzlement that the Minister has repeatedly said this evening that it is the Government's intention not to broaden but to deepen the devolution settlement, but it would be possible for the Government to add any number of fields to those already contained in schedule 5, subject of course to the limitations in schedule 7? My concern is that it may be possible at some later stage for a large number of additional fields that are not presently the subject of the devolution settlement to be added.

Nick Ainger: Yes, field 10 is on highways and transport. The matter would come under field 10 and still have the heading highways and transport. The matter, as defined in the Order in Council, would sit underneath that heading.
	Some of confusion may arise from the way in which the Bill is set out. There is a series of headings: Schedule 5, Assembly Measures, Part 1 and Matters, but that is then followed by the list of fields. That may have caused a little confusion. I hope the hon. Lady now understands the process.
	I now come to the question of how more fields can be added. The hon. Lady is right to suggest that additional fields of Executive functions have been added since the 1998 Act. That has been done by a combination of primary legislationfor example, the Fire and Rescue Services Act 2004 transferred the Executive functions for the fire brigades in Wales to the Assemblyand the transfer of function orders, the most obvious example being that for animal health. We envisage that those processes will continue. If agreement was reached between the Government and the Welsh Assembly Government that additional competence should be given to the Assembly, those are the procedures that would be used.

Nick Ainger: Indeed. The hon. Gentleman is quite right.
	I now wish to explain how the Orders in Council would be used to amend schedule 5. If a transfer of functions order transfers Executive power from a UK Minister to a Welsh Assembly Minister, hon. Members may ask why there should not be a requirement to add that field to schedule 5. I do not propose this, but let us bear in mind the earlier debate about energy. If Executive functions were to be transferred from the Department of Trade and Industry to the Assembly Minister responsible for that issueI imagine that it would be Andrew Daviesthe transfer of functions order would clearly set out what was being transferred to the Assembly.
	One might argue that the logic is that the transfer of function order should also include the order that would also give the power to legislate. However, the Orders in Council give the powers to the Assembly to legislate whereas the transfer of function order is from Minister to Minister. That is why we would still have to have a separate Order in Council giving the Assembly the responsibility to legislate. The Executive function must be transferredthat is the first thing that must happen. That would trigger the field being added and then, in the fullness of time, an Order in Council would set out the legislative transfer.

Nick Ainger: No I cannot, but I will write to the hon. Lady to let her know.
	I hope that I have been able to explain the procedure under which a new field would be added. It is clear that it will be for Parliament to decideeither through primary legislation or a transfer of functions orderas has been the case when other Executive responsibilities have been passed to the Assembly. The hon. Lady indicated that amendments Nos. 166 and 167 were probing amendments. I hope that she is happy with, and reassured by, my explanation of how the process will work and new fields added, and that she will thus withdraw the amendment.

Howard Stoate: In the United Kingdom today, 9 million peoplenearly 15 per cent. of the populationsuffer from some degree of deafness. Of those 9 million, 5 million would benefit from hearing aids; yet only 2 million people currently have one.
	The introduction in January 2000 of the modernising hearing aid services project promised a step change in the way in which NHS audiology services were to be managed and delivered. Digital hearing aids, which hitherto had only been available privately at a cost of up to 2,500, were finally to be provided through the NHS, and substantial investment was to be made available to audiology services to modernise their facilities and service. Since then a great deal has been achieved, and the quality of life of thousands of people, who are now benefiting from a digital aid for the first time, has undergone a dramatic improvement. It is an achievement of which the Government and its partner organisations, such as the Royal National Institute for Deaf People can be justly proud.
	While many patients have benefited in the last six years, a significant number of patients who are eligible for a digital aid, but have yet to receive one, are unlikely to have one fitted at any point in the near future.

Howard Stoate: The hon. Gentleman is right, but I shall explain some of the reasons for that. The fault is not the Government's alone, and the system has worked well in some areas, but the service is patchy and we must try to bring all areas up to the best level. It is not true that the NHS is unable to fulfil contracts and deliver a good service, as it is clear that it has managed to do so in many parts of the country.
	It is apparent, however, that a lack of resourcesthat is, facilities, staff and financestill hinders the NHS' ability to deliver the level of service that patients have a right to expect. The Department of Health announced in January 2000 that 94 million was to be made available to modernise hearing aid services in England and said that, by April 2005, the latest digital hearing aids would be available for those people across the country who could benefit from them. Although digital aids are available in north-west Kent, we are still a long way from achieving the unfettered access envisaged in 2000.
	The Darent Valley hospital patient and public involvement forum has campaigned tirelessly on this matter, and has suggested that many of the present problems result from a shortfall in funding from the Department of Health. It asserts that Government funding has covered only the cost of the hearing aids themselves and the associated computer equipment. The funding also helped to meet some, but by no means all, of the extra staffing costs associated with the increased work load, and that has obliged local PCTs to make up the difference from existing fundssomething that they struggle to do. One member of the PPI forum, John Beadle, has said that
	although funds have been allocated
	to trusts,
	they were insufficient to meet all the requirements of audiology departments to fully support the 'Modernising Hearing Aids Service' programme.
	Another major problem impeding the Dartford PCT's efforts to improve services is the shortage of suitable facilities. An outreach centre operated by staff from Medway, and using equipment from that trust, is available at Darent Valley hospital, but it consists of only one room. That is absurdly inadequate for an area with a population of almost 200,000.
	Medway NHS trust has put together a business plan for the development of audiology services, and it seems likely that some of the capital will be used to fund the creation of an additional audiology room. Even with that extra room, however, the trust will still not have the level of facilities that it needs to deliver an effective service. It will still be far below the recommended level of provision set out in the best practice standards for adult audiology published in 2002 by the Department of Health and the RNID. In addition, even if the service is able to recruit and retain a full team of staff, and to ensure that a full range of equipment is made available, it still will not have the necessary facilities to house them.
	Like all areas of the country, the service in Dartford is also affected by a shortage of audiologists. An audiology degree course has now been introduced and more qualified audiologists are now entering the profession but, with the demand for digital hearing aids continuing to increase, the service is struggling to keep up.
	More and more people are seeking help with their hearing problems and that is, of course, to be encouraged. We have known for a long time that there is an enormous amount of unmet need around the country, and it is good that people are coming forward for help, encouraged perhaps by some the recent announcements that have been made by the Department of Health. I am worried, however, that those peoplesome of whom might also have been encouraged to seek help by their friends and familiesmay quickly lose heart and give up when confronted by a lengthy wait for a fitting.
	It is apparent that the lengthy waits experienced by patients in Dartford are common in many parts of the country. A recent survey carried out for the British Society of Hearing Aid Audiologists found that 41 per cent. of hospitals reported that queues of patients needing a hearing aid are longer now than in 2004. According to the society, it now takes seven weeks longer than it did in 2004 to see a specialist, have a hearing test and eventually get a hearing aid fitted.
	The worst affected region is the south-east. By autumn 2005, the average wait there rose from 58 weeks in 2004 to 81 weeks, according to the BSHAA. In the north-east, the average wait went up from 18 weeks to 48 weeks, and the average wait in the west midlands is now 65 weeks.
	In some trust areas, the average wait is considerably longer still: the BSHAA reported total waiting times in 2005 of 130 weeks at the Royal Sussex County hospital in Brighton, of 156 weeks at Birmingham's City hospital, and of 106 weeks at the Queen Elizabeth the Queen Mother hospital in Margate. In contrast, the average total wait from referral to fitting is around 31 weeks in the east midlands region, and 35 weeks in the northern region.Again, that shows the existing disparity across the country. The speed of service that a patient can expect therefore varies widely from place to place, and that is clearly unacceptable.
	Waiting times are by no means the only issue that patients are concerned about. For example, a number of people have also approached me with concerns about the level of choice that exists in terms of the types of digital aid available to eligible patients. Although in-the-ear aids are available to private patients, NHS patients have access only to behind-the-ear aids, which many people find cosmetically unacceptable. Unfortunately, most NHS patients are unaware of this until they come to have a digital aid fitted. Not unnaturally, they are often very disappointed. This is particularly true of patients who receive their aid through companies involved in the public-private partnership scheme, which have of course spent considerable sums advertising availability of in-the-ear aids.
	I am also concerned that, because of the pressure on local audiology services, patients who have been fitted with a digital aid may not be getting the rehabilitation and aftercare that they need to ensure that they make full use of the aid. The aftercare burden faced by audiology services has become even heavier since the introduction of the PPP scheme, as the companies taking part in it are not involved in the aftercare of NHS patients whose digital aids they fit. A telephone follow-up service has been introduced by the NHS, and it is clear that it is working in the constituency of my hon. Friend the Member for North-West Leicestershire (David Taylor), but it is not ideal and no substitute for ongoing, personal, face-to-face consultations.
	It is clear that lack of effective service monitoring and audit arrangements at local level have contributed to the parlous situation in which many audiology services now find themselves. The Department of Health, the Royal National Institute for Deaf People and the National Institute for Health and Clinical Excellence have all published guidance on how local services should run. For example, NICE issued guidance on hearing aid technology as long ago as July 2000. It recommended that audits be performed to assess the performance of audiology departments. Two years later, the Department of Health and the RNID published their Best Practice Standards for Adult Audiology, which set out the standards that
	all audiology departments will want to work towards.
	It concludes by saying that
	a scheme should be put in place for monitoring and audit on a regular basis.
	It seems, however, that few trusts have been able to implement either the best practice standards or the NICE guidelines fully. In many places, no attempt whatsoever has been made to implement them. Moreover, since those guidelines were published, little or no attempt has been made at national level to assess the quality of service being delivered in terms of waiting times, or to see whether the guidelines are being adhered to.
	Part of the problem up to now is that unlike accident and emergency or cancer waiting times, the Healthcare Commission does not take into consideration audiology waiting times in setting each trust's annual performance rating. This problem is compounded by the fact that the Department of Health does not collect records of waiting times in each trust on the fitting of hearing aids. Both those oversights need to be addressed if we are to have a more accurate understanding of the situation on the ground in each area.
	The new Department of Health 18-week treatment target for audiology patients by 2008 is a welcome step forward, but as I have already alluded to, to whom this waiting list target actually applies needs to be clarified. Does it apply to all patients, or just to those without any amplification? I should also be grateful for clarification of the level of treatment that the target refers to. Does it apply simply to the waiting time from general practitioner referral to an appointment with an ear, nose and throat consultant, or to the waiting time from GP referral to final fitting? It needs to refer to the latter if it is to have any credibility. A more robust and transparent system of targets, assessment and audit is absolutely essential if the service is to improve across the country.
	Resources remain the ultimate obstacle, however, to service improvement. I have already referred to the straitened circumstances in which the audiology service in Dartford is operating. I hope that the accommodation problems that Dartford is experiencing are not the norm across the country. An assessment of the appropriateness of the accommodation in which each service is functioning needs to be carried out, and I ask the Minister to ensure that it is.
	An assessment of the financial capacity of each service to deliver its basic commitments also needs to be carried out. The RNID document Sustaining your modernised audiology service maintains that adult services in England
	have been fully funded to fit digital aids, and an increase to reflect ongoing commitments has now become part of the baseline allocation to trusts.
	The evidence from Dartford and from the BSHAA, however, suggests that trusts are finding it difficult to meet their obligations to patients, and that the funding provided is nowhere near sufficient to meet demand. Funding for audiology services ceased to be ring-fenced in April 2005 and audiology services now have to compete for funding with other health care departments. So it is unlikely that the funding situation will improve in the immediate future, given the state of most trusts' funding. Until requisite funding is made available that is based on an accurate assessment of the level of need in each community, audiology services will undoubtedly struggle to cater for existing demand.
	In some ways, the Department of Health has become a victim of its own success in marketing digital hearing aids. In the past five years, thousands of patients have been persuaded, thanks to the efforts the Department of Health and the RNID, of the advantages that a digital aid can offer, and they have become aware of their availability on the NHS. Demand has therefore risen dramatically across the country, in most cases well beyond the capacity of the local audiology service. We cannot afford for the progress made in the past few years to be wasted. A thorough review of the way in which audiology is funded, delivered and monitored is therefore essential. I urge the Minister to make it a priority.